Separation in status under Section 37(b) of the Orissa Land Reforms Act is distinct from partition of property, and an unregistered deed of partition may be used to prove separation in status even if it is inadmissible to prove partition.

R. C. PATNAIK, J.

( 1 ) THIS writ application arises out of a ceiling proceeding under Chap. IV, Orissa Land Reforms Act.

( 2 ) THE petitioners are the sons of late Gour Chandra Misra. Their mother is Sitamani, opposite party No. 5.

( 3 ) A suo motu proceeding under Section 42, Orissa Land Reforms Act (for short, the Act) was started treating Sitamani as the head of the family. The sons were not parties. In due course draft statement was prepared showing 8. 48 acres as surplus and was published requiring the landholder to file objection, objection was filed by Sitamanistating that her sons after partition were in possession of substantial part of the property in their own rights. They were not members of her family as per the definition of 'family' contained in Section 37 (b) of the Act. It was also contended that Sitamani was holding certain land as donee under a deed of gift executed by her late husband. It was canvassed that proceeding in respect of Sitamani could be for the lands received by her as a donee and the rest of the land in respect of which there had been partition between the sons should be excluded.

( 4 ) ON 2-1-76 objection was filed and the Revenue Officer required the landholder to produce documentary evidence. After some adjournments were granted for the production of the deed of gift, the case was posted to 23-3-76 for delivery of judgment. It may be noted here that the case was not posted to any date specifically for hearing, except that the landholder had been required to produce documentary evidence. By his final order, the Revenue Officer held that the deed of partition dated 28-12-68 being an unregistered one was not admissible in evidence and the sons being members of the family with Sitamani the property belonging to all the sons should be aggregated for finding out the ceiling area and the surplus land. He rejected the contention raised on behalf of opposite party 5. In appeal and in revision, the order of the Revenue Officer was concurrently sustained.

( 5 ) MR. S. C. Ghose, the learned counsel for the petitioners, has urged that all the forums misconceived the position in law by treating partition as synonymous with separation. Secondly, no opportunity was afforded to opposite party, party 5, and the petitioners to establish their case.

( 6 ) SECTION 37 (b) reads as follows:--

"37 (b ). 'family' in relation to an individual, means the individual, the husband or wife, as the case may be, of such individual said their children, whether major or minor, but does not include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970. "

A major and married son separated by partition or otherwise before 26-9-1970 is to be excluded while determining the family of the landholder.

( 7 ) SEPARATION is net synonymous with partition. Partition conceptually may be either partition of status or partition of property. Separation means separation in status. Separation in status may be accompanied or followed by partition of property, but partition of property is not essential for separation in status. There can be separation in status by a mere unequivocal declaration to separate. The expression "partition" in Section 37 (b) denotes partition of property, i. e. , division of property by metes and bounds. The revenue authorities, under Section 37 (b) of the Act are required to determine separation in status.

( 8 ) THE forums in this case have negatived the contention of the petitioners merely on a finding that the deed of partition was inadmissible for lack of registration. What they were required by the law to find was separation before 26-9-1970. Negativing partition was not the end of the exercise. The claim of the landholder was not available to be rejected merely on that finding. It was further to be found that there was no separation, i. e. , separation of status before 26-9-1970. An unregistered deed of partition inadmissible in evidence to prove par